38 F. 902 -

38 F1d 902

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002

. RErORTER,

vol. 38.

neou81y ,with' this agreement; by which providedJor the payment of this $400 per apnum out of her estate, in case of her death before the death, of MrlkHyde. At the ,time thisagreeQlent was made,Mrs. Hyde was between' 60 and' 70 years old. She was liable to live yet many years, and at the same thne liable to die, within a short time. The Smiths took all the chances of a long life, or a possible short continuanceof her life, and bound .themselves to pay her this annuity of $400 per year. It was a natural arrangement for an old lady,situated as she was,to make. bhe had been unfortunate in the loan to Barber, and was subjected to greai vexation, annoyance, and inconvenience by reason of Barber's failing to pay his interest. Her relations to Mrs. Smith were such that she felt confident that Mrs.. Smith would see that she was provided for; that she had her annuity, and was exercising a judicious caution in not binding herself to be at all times a member of the Smith family, but 'provided for an annuity, with the privilege of living in the family if she chose to do so, thereby leaving herself free to live elsewhere, and enjoy her income, if oircumstancesshould afterwards make it more desirable for her to do SQ. I .may also add in raga,.rd to the gifts made by Mrs. Hyde to Mrs. Smith that, even if these cannot be supported upon the grounds on which I have already disposed of them,they clearly come within the disposing power fJf the will, and evidently, if the $1,000 claim is not fully answered by. the statute of limitations, by reason of its being trust funds, or for apr other reason, it WaR clearly within the power of Mrs. Hyde to dispose of this money as she did. She ,was interested in'Mrs. Smith as her foster-daughter; was making her home with her. It was desirable that Smith should have a home, and Mrs. Hyde saw fit in her "judgment" to contribute to the purchase of the home for her. With this view of the true construction to be given this will, I must dismiss the bill for want of equity.
i

UNITED STATES V. PURDY

et ale

,

(D(8trict Oourt, S. D. Ohio, W. D. April 25, 1889.) 1.
Under Rev. St. U. S. § 4707, providing that if a soldier has died entftled to a pension,'and leaves neither widow nor minorchlldren', his mother, father, or orphan brothers and sisters, if dependent on him at the time of his deMh, shall be en,titled to the pension, a mother is dependent, upon her son wilen ,. she requires fOIl her support the use of a farm in which he has an interest asI'BNSIONS-,DEPENDENT RELATIVES.

8. SAME. . . The mother would be entitled to support according to' she had been accustomed to live. '." SAME. '

h*

"

'

style in which . . ,

Though. the mother, a widow, had some money of her own invested. she was not bound to u,se the capital for her support.· She could be depepdent upon the &0.0., within the meaning of the statute,and still keep her money a,t interest, using the income for her support as far as it would g·o.

lJ'NITED STATES 'D. PURDY.

903

o

4. SAME-CONTRACT FOR SUPPORT.

Under the provision of section 4707. that the pension allowed to any per son on account of dependence shall "not be paid for any period during which it shall not be necessary as a means of adequate subsistence," if the mother has made.a contract with a third person for her support during lifesh,e is not entitled to any pension from the date of such contract. . The mere fact that there were false statements in an application for a pen sioD under section 4707, even if they were intentionally false, is not sufficient to invalidate the pension. It must appear further that they were material and necessary in order to procure the pension.
o ·

5.

SAME-ApPLICATION FOR PENSION-FALSE STATEMENTS.

6.

The opinions of the secretary of the interior as to the construction of the pension laws are not authoritative or binding upon the courts.

OF SECRETARY OJ!' INTERIOR.

At Law. . Action to recover back pension money. Harlan Clet'eland, Asst.· U. S. Diat. Atty., for plaintiff. Newby & Morrow, for defendants.
SAGE, J., (oraUycharging jury.) The government sues to recover from· Margaret Purdy and her son Robert J. Purdy, the sum of $2,546.86, which, as is set forth in the petition, is the amount of the pension granted or paid to Margaret Purdy on the 25th day of April. 1888, on account of the.death, from injuries received in the service, of her son William T. Purdy,.on the 12th of May 1862. The pension was granted under section 4707, Rev. St. U. S., which provides, in substance, that if a soldier has died. of a disability contracted in service, under such circumstances as wouldbave entitled him to a pension, and he leaves· neither widow nor minor children, certain relatives, if any survive; who weredependent, in whole or in part, on such soldier at the time of his decease, become entitled to the pension. The mother is first entitled, the father second" the orphan brothers and sisters, third. Now, this statute provides iliat there must have been dependence uporithe deceased soldier for support, in whole or in part, at the time of his death, and that the mother shall be presumed to have been dependent upon her son if, at the date oLhis death she had no adequate means of support other than the ordinary proceeds of her ownmitnual labor and the contributions of herson, or ofany other persons not legally bound to aid in herS'Up.. p.ort, andiLby actual contributions,or in any other way, the son had recogniJzetl his obligation to aid in the support of ,his mother, or was by la.w bound to .such support. . The first question in this case therefore is: Was Margaret Purdy de-: pendent, for her support,.in whole.of in part, upon William T. Purdy at the date of his, death? In other words, had she adequate means of support other than the ordinary proceeds of her own manual labor and his oontnbutions,or the contributions of other persons no1l1egally bound to aid in her ,support? It is for you to determine the facts bearing on this question. . !It appears from the evidence so far as the court was able to hetLrit, that)n 1860, Ithink,--at any rate,a1l a:.date prior to the en· listment.of,William T. :Purdyin the army,......Margaret Purdy's husband died:.intestate;t that in the two farms-'one of 78 acres I and. the o\h&r of,

904'

FEDERAL REPORTER,

vol. 38.

about 24 acres-therewere about,35acres of cleared land; that after the death of the husband and father the .widow continued to live on the place; (she was entitled to her home there for one year under the law;) but thl1tshe continued to live there, and her sons were with her, living upon the place, improving and working it. Whether the deceased was with her most of the time up to. the date of his enlistment depends upon the testimony,but the whole drift of the testimony is that the widow I;llanagement of it, the cultivation of occupied the farm, supervising it, and that the work was done by her sons, and she got her living in. that way, Now, upon the death of the father, the title toth1s land vested instantly in the children, to the dower estate of the widow, which would be one-third of the rents and profits during her life, and it would be a contribution to her'support if the children permitted her to have the use orthe entire farm. And if that use of the farm was necessary to her support, then she would be, at least in part, Qependent upon that, and that dependence w0uld be recognized by permitting her to occupy the farm, as I have stated. Now, it appears from the testimony that :there was also some personal estate left,--,how much, I do not remember,-perhaps'$l,200 in money, and the stock on the farm, and other personal property; but you can determine that better than I can state it. That personal property did not vest in the heirs on the death of the father, but in the administrator. I think no administrator was appointed until in 1862,-inApril, 1862. Possibly the title was vested, technically, until that time, in the heirs, in order to keep the' title somewhere;· but certainly they had no beneficial interest in it, because the law vests the personal· property in the administrator for the payment of the debts, and, after that is accomplished, then the law requires a distribution among the heirs; when, for the first time, they have a beneficial interest. There is. something, also,' about certain moneys which this widow had in her own right, which came to her from her ancestors. Up to the Bdof April, 1861, the law of Ohio "I'as the same as the common law of England, which upon this subject was, in brief, that the personal property of the wife, including her money, whenever it came to the possession of her husband, became his; and that was the case in Ohto up to the 3d of April, 1861. From that time forward it was made a. separate estate of the wife, with the proviso that if she voluntarily placed it in the hands of her husband, then it became his. Now, Mr. Purdy died .before the 3d of April, 1861. Whether this money that had· come to Mrs. Purdy from her ancestors was vested in him does not appear. It appeal's from the testimony that it came to her possession; and the presumption is that it continued in her possession until shown that it was taken into his possession, and used by him j so that, as there is ·no testimony on that subject, I take it that the money she has would fairly be considered as her own property. But whether that was so or not,' if you should find that this money was her own, then I say to yoti that she was not bound to use up her capital for her support·. She had a tight, so far as the construction of this statute is concerned, to keep that mOlleyat interest, depend upon the income from it, and to treat herself

UNITED STATES fl. PURDY.

905

as dependent upon her sons for whatever might be necessary for her support over and above that income. The testimony ehows that William T. Purdy was a minor at the time of his death. That being so, he was under obligation to contribute to the support of his mother, which brings him within one clause of this section, and that leaves the question simply whether she was dependent. - Something has been read to you from the opinions of the secretary of the interior as to the construction of that section. Now, his opinion, while it may be used argumentatively to the courtAs not an authority on the construCtion of the law; because the constitution vests that power in the judiciary alone. E?o that the construction of the secrew.ry of the interior does not fix the meaning of the law; and, while it is correct in some respects, it is clearly wrong in others. There is a statement hertl that if the income of the relative claiming to be dependent is less than $500 peryear, that is to be regarded as making him or her dependent; and if it is over $700, or $750, the construction would be the other way. Wen, the court does not recognize that as the true construction of the law. In the opinion of the court it depends upon the circumstances of each case. The mother is entitled to support according to the style in which 'sqe has been living. If that has been humble and inexpensive, theamount necessary to provide for her would necessarily be less than if she had been living in a more expensive style. The policy of the government is not to reduce the surviving relatives of the soldier who has his life in the service down to the lowest standard of life, but it-is to construe the dependent clause, so far as the obligation of the statute is concerned, according to the mode in which the widow had been living. --Testimony has been given regarding the rental value of these farms, -the cash value. It ranges from $125 to $150 a year gross rents. That seems a very small rent for 100 aeres and a little over, or even for 78 acres; bu t you must take into account that altogether there were only about 35 acres cleared. Take into account, also, the testimony with reference to the condition of the land, and the improvements upon the farm, and it is simply a question of evidence. Out of this gross income -according to the testimony of the different witnesses-not less than . $50,and according to the highest, $75, a year would be required for taxes and improvements. The testimony is that the cost of the support of the old lady, if she did nothing for herself, would be from $250 to $500 a year. That is also for you to pass upon. It is for you to determine from the te!ltimony whether she was adequately provided for, and in determining that you will look to what was necessary for her support. It struck me that the estimate of $500 was altogether out of the way; that it was much more than was necessary, according to the testimony as to the woman's life. If her boarding and washing cost from $3 to $4 a week,-which is the range of the testimony,""":"$250 to $300 would cover the expense of her living according to the style in which she had been'accustomed to live. The next question is whether there was fraud in the a,pplication whioh would invalidate the pension. That, I think is pleaded in the petition.

906

vol. 38.

Now, I do not think that the mere fact that there 'Vere false statements in the application, even if they were intentionally false, is sufficient to invaliilate the pension. It appear further that, they were material, that false to the granting of the pension. Take, for illustration, the statertJ..'entin the testimony with reference to the transcript from the auditor's books, that Margaret Purdy had no property. You have heard the statement, and you have heard. but was the explanation that. it was not an iqtentional made by mistake; .that it was supposed that the Marp;aret Purdy referred to was not the Ma.rgaret Purdy in this case, but was a woman who did own considerable property, and was a relative of Margllret ,Purdy, the deAs I have already stated, ,fendant, aJild was known as the personal estate of Margaret of which her hpsband had got possession, was. his, not hers.. And ,the personal property of the estate did not belong to Purdy, nor to hercpildren; it. belonged to .the.estate of her husband, ll,nd vested in the administrator until the estate ·was And if it was taxed in the n1J.me oJ Margaret Purdy, ,that did not make it her property. But suppose she. had $1,500 or $2,,000 personal property on, the tax duplicate, then the question is whether ,that, would haye made showing which would have ,so changed the conthe .question of. dependence. I. do not. see ,ditions ,as to do away hGwit could,.forshewas entitlep. t(). the pension. and the payment oUhe interest upon that property, Htlle wQuld not bead,equate for her f$Upport·.' ; . . . . . , ,' . . ;. ,The nex;t, l\roposition ,made :qy the is that, if she had a [email protected] .B1;lpport :which w,as adequate for can bei no ........nq proper allowll,npe-of her pensipn. , Now, that isa .:J'Qttectstatex:nent oUhe law. IUB, to be found in .the closing paragrllph that the to any perof IilElction 4707: son on of his 91,' her ,{lependenge, as hereinbe(9reprovided, sh!lll for any period during w4kh it shall not asa means ,no,t .,Qf tldequate ll'Q.bsistence."Well, very plain that provision ,qf, section, ,had made a contract with her son Robert :r. Purdy, iscl.aimed was,to.take car,e of her life, andprovidj} for, b11e wa,s not entiitled to this pen, i, The first objectioll made to this point by ,the qefense is that the .$uitis notplaced,,1;lpqp. that ground. That is true. But the testimony ANI :without on that Ilcore, and ,the parties I.liIl! present in cqurt,so ,that no surprise has. J,'es1;llte,d, and the defendants have not)een at any disadvantage; and, according to the Oode, 8; between the allegations. of thepleadings,ap,4. the. proof is not .: tpbe regarded as material unless .it has actually udalE;;c;l the.adverl/e party "to his prejudice in !ll,aintaining or defense u;pon the merits· . ·Tb.erefore.I think that tpispoiJat is. to, be considered;,and that, if lieces: LmYl1 thecQurt, Il hpl,lld allow, the pleadings to be after .verdiet, to make them conform to the evidence. The qu('!stion s1;lcha. c,op.trllct? I think that it is conceded that such a,con:Roperti . 'rhe, op.ly thenf.is

a

j

907

Counsel for the government say that it was made in 1865, 1866, or 1867, at the time whell. the old lltdyboughtoutthe shares of the brothers of Robert. and had all the title to the 78 acres conveyed to him, upon an agreement, 011 for the consideration, that he should support and care for his mother during her life-time. If that if! true, then the pension is invalid; that is to say, if you find that. a contract was made as ,claimed; and that it did provide for her support. On the other hand, counsel for the defense say that this contract was not made until the 3d of September, 1881 I leave it·for you, gentlemen, to find what the date was. The burden of proof in this case is upon the gO\'ernment; thatis to say, if the evidence is evenly balanced on any point the finding should be for the defendants. If there is a preponderance of evidence in favor of the government, your finding l:Jhould be for the government; otherwi$e y()tlrfinding will be for the defendants.. If you find that Margaret Purdy.:was not dependent upon the deceased at the time of his death, why,then; of course, it would result that the entire pension was invalid, and. government is entitled. to recover the total. amount of the pension. If you find that she was dependent, and: that there were no material misrepresentations in the application, why then you come to the question whether this contract was made for her support. If you find that it was,; then the pension stops at the date when that contract went into effect, and so much of the pension as covers the period between tl,lat date and the time when the money was paid would be recoverable by t4e.go;vernment. 'fhereisone other point that I wish to refer to. There seems to be bad plood between the brothers in this case. Now, wherever there is anything of that. sort, the only legitimate use that can be made of it by the jury is in weighing. the testimony of the parties. If the witness seems to be swayed by prejudice, or envy, or malice, of course that affects. his but,liSide from that, it ought not to. prejudice this case. either for or against the government. And as to the pension agent, I do not think that he is open to criticism on account .of his diligence; that is what he is employed for. The United States government has heen exceedingly generous to its soldiers, and to their relatives, and has provided a splendid pension fund, and it is plill'Jectly right and proper that it should provide all due and necessary care against peculations from that fund,and that the officers employed should be and active in performing their services. And the testimony or that.witpess is to be weighed and oonsidered just as the testimOQYQf the oth.er witnesses, and from all the tesCmony you are to determine the facts and find your verdict.

908

.FEDERAL REPORTER,

vol. 88.

HELLEn

et al.

'!1. MAGONE.

(OirlYUit (Jourt, 8. D. Newyqrk.

May 28. 1889.)

1.

CUSTOVll

By the use of the phrase manure. and all substances expressly used for manure." found in the free list of the tariff act of March 8. 1888. (22 U. S. St. at Large. 488.) congress has plainly said that all imported substances. whether specially provided for'60 nomine. or covered by any general language descriptive of their ori&in or qualities. which subserve the purpose of enriching the soil. and thus Increasing the crops to be raised upon it, should be free. ; . ,

:j·SAME-MANURE SALTS·

.An article. though in fact "sulphate of potash," and at and prior totiIe passage' of the said tariff act of 1883 generally and sold in trade and com· ,. merce of this country under the name of "sulphate of potash." is. iIi cases of the importations thereof which are actually used in the manufacture of fertilizers·. not dutiable under thQ provision for "sulphate of potash " contained in sohedule A of the same tariff act/ but is free of duty under the provision .. for "guRno,' manures. and all substances expressly used for manur,e," contained in the free list thereof. ." ' .

!,AtLaw. " On June 6, July 25, and Octob.er 17, 1887, the plaintiffs made three impottationsfrom'Hamburg, Germany, into the port' of NewYorkofa certain article of merchandise invoiced as" manure salt." The defel'idant, as collector of customs, pursuant to S. S. 7452" rendered April 7, :classified tHis article for duty as "sulphate of potash," under the provision for l'sulphate of potash," contained in Schedule A of the tariff Il,ct of March 3, 1883, (22 U. S. St. at Large, 488; Heyl, New, 70,) and exacted of the plaintiffs' duty thereon at the rate of 20 per centulll ad fJalorem, and, in the sum of $2,018.60, which, with interest up to the date of vel'dict,. amounted to the sum of $2,225.84. Against this classification and exaction the plaintiffs duly protested, claiming "that said article. is made and imported' expressly for use as manure; and is expressly so used, and is entitled to free entry under the provisions for all substances expressly used for manure in the free-list act, March 3,1883; second, we separately protest against your assessment ·of 20> per cent. ad 1J!1l. on said article as sulphate of potash, claiming that while said article may probably contain' sulphate of potash' to a greater extent than any other of ,its component elements, that it is nevertheless in tact and comm:erciallya diflel,'ent article, being a compound containing other ingredients besides.! sulphate of potash,' and commercially known as 'manure salts,' and used expressly for manure, and therefore entitled to free entry by the provision of the free-lil;t act of March 3,1883, (T. 1. 505.") The plaintiffs also duly appealed, and within 90 days after the decision of the secretary upon these appeals duly brought their suit to recover the duties exacted as aforesaid. Under the tariff act of July 30, 1846, (Schedule I, 9 St. at Large, 42,) "guano" was first mentioned eo nomine, · and made free of duty; and again under the act of March 2, 1861, (section 23, 12 U. S. St. at Large, p. 178; Heyl, Old, 154.) Under the act